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2023 (5) TMI 1023 - AT - Service TaxRefund claim - doctrine of unjust enrichment - Period of limitation - freight inward and freight outward for the period pertaining to April 14 to March 2015 - service tax paid on transportation of Chemical Fertilizer from the different buyers and transported the same by Road to their Pulgaon Factory and the same type of transporting is Exempt Under Notification No- 25/2012 - HELD THAT:- Undisputedly the refund claim has been filed by the appellant much beyond the prescribed period of limitation as per the Section 11 B of the Central Excise Act, 1944 as made applicable to the cases of Service Tax by Section 83 of the Finance Act, 1994. The finding recorded by both the authorities, on this aspect cannot be said to be perverse and should not be interfered with. The impugned order has relied upon series of the decision rendered in the matter by various authorities, which support the view taken. A part of refund claim has been rejected by the impugned order on the ground of time bar on the reasoning similar to one which was adopted. As it is upheld that impugned order there recording the finding on the issue of time bar which is identical in the present cases this order needs to be upheld on this issue. In case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], a five judges bench of Hon’ble Supreme Court has held that Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification and When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. In view of the decision of the Hon’ble Apex Court, interpreting an exemption notification, in strict manner so as to deny inadmissible refund claimed in respect of service tax paid on the inward transportation service cannot be faulted with. Accordingly the impugned order to the extent it hold that refund claim in respect of inward transportation service is inadmissible cannot be faulted with. It is now settled law that all the refund claims need to be examined as per the provisions of the section 11B and it is for the claimant to establish that the burden of the tax paid has not been passed on to the consumer of the goods or services. In case the claimant fails to establish the same the refund even if admissible needs to credited to Consumer welfare Fund. Hon’ble Supreme Court has in case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] has held that Where the petitioner-plaintiff has suffered no real loss or prejudice, having passed on the burden of tax or duty to another person, it would be unjust to allow or decree his claim since it is bound to prejudicially affect the public exchequer. In case of large claims, it may well result in financial chaos in the administration of the affairs of the State. Both the authorities have after consideration of the facts on recorded have arrived at the finding that the burden of the tax claimed as refund has been passed on by the appellant to their consumers. The finding recorded by both the authorities, on this aspect cannot be said to be perverse and should not be interfered with. The impugned order has relied on the cost accountant certificate to hold that the burden of the tax paid has been built in the price to the end consumer. The cost accountant certificate supports the view taken. Once the burden of the tax paid has been passed on to the consumer, the admissible refund needs to be credited to consumer welfare fund as has been held in the impugned order. Appeal dismissed.
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